The debate continues with KF on the Attorney General, the constitution, and the rule of law

The exchange with KF regarding my article on the AG continues. I set out the latest exchange below:




January 21, 2008

Thank you Mr. Sobers,


"For your information, the nature of the proceedings before Mr. Justice Jones was judicial review. In such proceedings, the court is only concerned with the legality of a decision of a public authority, and not the substance of the decision, per se."


Could you tell this to Donald Buchanan and Bert Samuels? Both of them are of the opinion that the dismissal of the former PSC and the appointment of the current PSC can be renderd null and void by an adverse ruling in the Judicial Review the PNP has initiated.

Is it unreasonable for the government's chief legal advisor to ask a government department to revers a decision which has been ruled illegal by a judicial review?

As to your constitutional point. I keep a copy of the constitution close at hand and all section 79 really dose is establish the office of Attorney General. Your whole argument about the Ministry of Justice overseeing appointments within the solicitor general's department would make sense except for the fact that the Minister of Justice and The Attorney General have traditionally been the same person.

Surely you are not saying the Attorney General should have no say in who works within the office of the Solicitor General? If we agree on that point, then what is there to trouble yourself over in the attorney general making use of a complimentary set of resources (The Ministry of Justice) to run the recruitment process?

Finally. You still have not even challenged my original point. I.e. How come you have taken on the minister's decision without either A) challenging the existence of the civil service regulations that she claimed requires that decision, B) Dealing with the matter of constitutionally invalid regulations that have existed unchanged for decades and C) a government law office which saw that lacuna and just worked against the regulations, rather than amending the regulations.


MY REPLY


Again, you seem not fully understand what I am saying.

With respect to the litigation pending initiated by the Leader of the Opposition, Bert Samuels is correct. In the same way that Justice Jones decision had the effect of nullifying the PSC's decision to retire Lackston Robinson in the public interest, the court could similarly nullify the dismissals of the PSC members, and as consequence the appointments of the new PSC members. You will recall that the essential purpose of judicial review is to test the legality of decisions made by public authorities or functionaries. Among the remedies available to the court in this regard, is an order certiorari which serves to quash an unlawful decision. An order of certiorari is usually accompanied by a declaration by the court that a particular decision was unlawful and therefore null and void. If the court finds that the relevant decision of the PM was unlawful, then it follows that the original PSC members would, in law, remain members of the PSC. Ineluctably, the subsequent appointments of the new PSC members would ipso facto be null and void.

I am not sure I understand your question about whether it is "unreasonable for the government's chief legal advisor to reverse a decision which has been ruled illegal by judicial review". As I explained to you before, there is no legal basis for the AG to either contend that the PSC was in contempt of Justice Jones' order or to direct that a public service officer be reinstated. Reinstatement, and for that matter, and other decisions relating to appointment, promotion, or transfer of public service officers, fall exclusively within the discretion of the PSC, and not political functionaries.

Section 79 of the constitution is fundamental to my entire analysis. You imply that my analysis makes no sense, given that tradition of combining the roles of AG and Justice Minister. As a matter of law, 'tradition' cannot supplant law, and in this case, the supreme law of Jamaica. The combination of roles cannot give the holder more power and authority than is accorded by the constitution. What you are implicitly arguing is that the holder of these roles is above the rule of law.

Regarding your point on whether the AG should have say on staffing issues in the Chambers, I again revert to one of my key constitutional points: public service appointments are constitutionally insulated from political interference. While there might, on occasion, be informal consultations with political functionaries, such consultations are not mandatory, and ultimately, political functionaries have no say in this decision-making process. The regulations of the PSC define a role for permanent heads of government departments (such as Permanent Secretaries and the Solicitor General), in making personnel decisions. No such role is prescribed for political heads (such as cabinet ministers and the Attorney General). The AG in this case, has done far more than insist on having the Justice Ministry oversee personnel matters in the AG's Chambers. The AG has insisted on exercising her own discretion in personnel matters, which is clearly untenable in law.

With respect to your final point, I believe I dealt with this in the first paragraph of my previous email. Again, I ask whether you have seen these so-called regulations for yourself. You have done nothing more than repeat the AG's claims, without more. Surely, since you are the one challenging my legal analysis, the onus is on you to establish that the regulations support the AG's conduct, as you seem to claim. I don't know of any "constitutionally invalid" regulations. The only authority competent to make a conclusive determination in this regard is the Supreme Court of Jamaica. If you know of any decision of the Court in this regard, by all means, please cite it. Certainly, the AG is not the final authority on the interpretation or validity of constitutional or other legal instruments. If indeed the regulations were invalid, as you say, there would be no basis for amending them, as such regulations would be inherently unlawful, and therefore null and void.

Best regards,


OHS